Bringman v. Von Glahn

75 N.Y.S. 845 | N.Y. App. Div. | 1902

Jenks, J.:

This action is upon a promissory note made by the defendant in favor of the intestate of the plaintiffs. The defendant admitted the making and delivery of the note, the non-payment thereof and the status of the plaintiffs. He denied that the note was given for value or that the intestate ever gave any consideration therefor. His counterclaim was withdrawn because the subject thereof had been embodied in a claim filed against the estate. The plaintiffs read the note in evidence and rested, and thereupon the defendants offered certain testimony. The learned court gave judgment for the defendant, dismissing the complaint on the merits. The instrument imported consideration. (Neg. Inst. Law [Laws of 1897, chap. 612] § 50 ; Hegeman v. Moon, 131 N. Y. 462, 467.) When the plaintiffs read it in evidence they became entitled to the presumption . that it was “ a valid obligation based upon a good and legal consideration, and the burden of showing that there was a want of consideration rested upon the defendant;” (Durland v. Durland, 153 N. Y. 67, 74, et. seq.) They could, therefore, then safely rest. If the defendant had offered any evidence that -showed or tended to show want of consideration, then it was incumbent upon the plaintiffs to show by a fair preponderance of evidence upon the whole case that there was consideration. But as the testimony offered by the defendant did not show -or tend to show any failure of consideration, the judgment must be reversed and a new trial ordered, costs to abide the event.

All concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.